PEOPLE v. ZAMARRIPA (1985)

OPINION

Defendant Frank Martin Zamarripa was convicted by jury verdict of kidnaping (Pen.Code, § 207), burglary (Pen.Code, § 459) and forcible rape (Pen.Code, § 261, subd. (2)).  Defendant was found to have used a deadly weapon in the commission of each offense (Pen.Code, § 12022, subd. (b)).  Defendant has appealed from the judgment committing him to the Youth Authority (Welf. & Inst.Code, §§ 1731.5, 1737.5).

FACTS

Pamela G., age 25, went to the Zodiac Lounge in Lucerne Valley at approximately 7:30 p.m. on December 2, 1981.   She sat at a table with her brother and two friends and remained there until approximately midnight.   During the course of the evening she saw defendant with a group of his friends in another part of the room.   Defendant was then 18 years old and was a stranger to Pamela.   Once when she was passing defendant's group while returning from the restroom Pamela felt a hand on her buttocks.   She turned and said “knock it off,” then returned to her table.

Pamela G. left the bar by herself and drove her car two blocks to the trailer park where she lived.   She changed into a robe and had started to cook some eggs when she saw a face at her kitchen window.   Thinking her brother was playing a trick on her, Pamela went outside and saw defendant jumping down from the trailer hitch beneath the kitchen window.   Defendant pulled out a pocketknife and placed the blade against Pamela's throat.   He told her she was going to take a ride with him.   She protested but defendant said “You will or you are going to get hurt.”   They entered Pamela's car and departed with Pamela driving.   As they were leaving the trailer park, a sheriff's patrol car passed them.   Pamela started to reach for the switch to flash the car lights but defendant jabbed the knife against her ribs.   An officer in the patrol car recognized both Pamela and defendant but noted nothing amiss.

Defendant directed Pamela down dirt roads to an isolated area.   He ordered her out of the car and made her disrobe.   The night was very cold and Pamela cried and begged to go home.   After some minutes defendant agreed.   He allowed Pamela to put her robe back on and they returned to Pamela's trailer.   Defendant said he had a gun and would “blow away” anyone he found in the trailer.

The trailer was filled with smoke from the burning pan of eggs.   After Pamela turned off the stove defendant ordered her into the bathroom and made her disrobe and stand under a shower of cold water.   Defendant then made Pamela lie on the bed, removed his own clothes, and forced her to submit to an act of sexual intercourse.   Defendant continued to threaten Pamela with the knife, holding the blade against her throat or her ribs.   After the act was completed, defendant would not allow Pamela to get up to use the bathroom.

Pamela G. and defendant remained in the bed together until 5:30 a.m.   They both got dressed and defendant told Pamela she was going to give him a ride.   When she protested he pushed her against a wall.   Pamela drove defendant to a residence about five miles from her trailer.   Before leaving the car, defendant warned Pamela she would be dead if she told anybody anything.

Pamela immediately drove to the sheriff's station and reported the incident.   An officer accompanied her to her trailer where he observed a burned pan and spatula.   He also observed footprints outside the trailer, including a partial print on the trailer hitch.   Pamela was then taken to a hospital for examination.   Sperm were found on a swab taken from her vagina.   Defendant was arrested at the residence where Pamela had left him.   A pocketknife was found on his person.

Testifying in his own behalf at trial, defendant said he was approached by Pamela G. at the Zodiac Lounge.   She asked him to lend her money for a car battery and he agreed, saying he would give her the money later.   She invited him to her trailer where they had consensual intercourse.   The next morning she drove him home.   On the way she kept asking for the money until he became angry and refused to lend her anything.

Defendant said he did not leave the trailer park with Pamela during the night and he did not know anything about a burned pan.   He accounted for the footprints outside the trailer by saying he went outside during the night to smoke a cigarette and to urinate.

In rebuttal, the prosecution introduced evidence of a statement defendant had made shortly after his arrest.   During the statement defendant had not mentioned a proposed loan and he had denied stepping onto the trailer hitch.

I

Defendant first contends that the trial court erred in denying his in limine motion to exclude testimony by Pamela G. concerning her trip into the desert with defendant.   Discussion of this issue requires a somewhat lengthy recital of procedural and legal history.

When Pamela G. first reported the crimes, on the morning of December 3, 1981, an interview between her and Deputy Trotter was recorded on tape.   Thereafter the officers conducted a preliminary investigation during which they asked Pamela to lead them to the exact spot in the desert where defendant had forced her to disrobe.   She was unable to do so.

On the following day, December 4, Pamela G. was hypnotized by a sheriff's detective.   While under hypnosis she recounted the incident from the moment the face appeared at the trailer window until the car came to rest at the spot where she was required to undress.   During the session she recalled directions, landmarks, and other aspects pertaining to her trip to the desert.   At the conclusion the hypnotist suggested Pamela would find it very easy to direct the investigators to the desert location when she came out of her hypnotic state.

After this session the investigators and Pamela again attempted unsuccessfully to find the desert site.   A final attempt was made by placing Pamela under hypnosis and asking her to direct them along the actual route while inside a vehicle but this was also unsuccessful.

During Pamela's testimony at the preliminary hearing, she mentioned the hypnosis sessions.   A few months later, our Supreme Court issued an opinion stating that hypnotically induced testimony was inadmissible and making this rule retroactive to all cases not yet final.  (People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775.)   Relying on this opinion, the present case was dismissed on defendant's motion to set aside the information (Pen.Code, § 995).   Shortly thereafter the opinion in Shirley was modified to leave open the question of retroactive application.  (Id., at p. 67, fn. 53, 181 Cal.Rptr. 243, 641 P.2d 775.)   The People then appealed from the ruling dismissing the information against defendant in this case.

In an unpublished opinion (No. 4 Crim. 14621, July 28, 1983), we reversed the judgment of dismissal.   Relying on published opinions of the Court of Appeal, including one from this Division, we held that Shirley did not apply retroactively to exclude testimony of witnesses hypnotized before the date of the Shirley opinion.   We then addressed the question whether “the rationale of Shirley” was applicable to the present case.   We quote our discussion of that issue:

“The record indicates that prior to hypnosis the victim fully recounted the details of the alleged kidnapping, burglary, and sex crimes.   She further identified defendant as her assailant.   Only after this information had been secured did the hypnosis session take place.   The sole purpose of the hypnosis was to learn the location of the desert incident.   The session never dealt with defendant's alleged perpetration of the sex crimes, but was confined to the trip to and return from the desert.   Because the hypnosis was so limited in its purpose and scope, we find it could neither affect the reliability of [Pamela G.'s] testimony nor was it so suggestive as to impede defendant's ability to effectively cross-examine her.

“[Pamela G.'s] testimony after hypnosis did not vary in substance from the story which she told detectives upon initially reporting the incident.   It is true that while [Pamela G.] was under hypnosis, she recounted the initial kidnapping and abduction to the desert.   However, her memory of these events was in no way altered by hypnosis.   Under these circumstances, we cannot say that the witness' reliability was in any way affected by the hypnosis session.

“The same is true with regard to defendant's ability to effectively cross-examine [Pamela G.].  We note, again, that [her] recollection of the sex crimes in question was untainted by the hypnosis session.   The only charge against defendant which might have possibly been affected was that of the kidnapping.   However, because the reliability of [Pamela G.'s] testimony as to the abduction has not been tainted by the hypnotic session and because there exists independent testimony which corroborates the abduction charge, we find that allowing [Pamela G.] to testify on this subject would not violate defendant's right to cross-examination.

“Because we have determined that Shirley has no retroactive application to the present case, we need not consider the People's contention that Shirley is inapposite.”

When the present case was called for trial, defendant made a motion in limine to exclude any testimony by Pamela G. regarding the trip with defendant into the desert and the events which occurred there.   The prosecutor argued that the issue was settled by our previous opinion, which was the law of the case.   Agreeing with the prosecutor, the trial court summarily denied the motion.

After the trial was completed and while this appeal has been pending, our Supreme Court has issued a new opinion holding that “the Shirley decision applies to all cases not yet final in our courts.”  (People v. Guerra (1984) 37 Cal.3d 385, 413, 208 Cal.Rptr. 162, 690 P.2d 635.)   In so holding, the court expressly disapproved the earlier published opinion from this Division reaching a contrary conclusion.  (Id., at p. 413, fn. 24, 208 Cal.Rptr. 162, 690 P.2d 635.)

On this appeal, the Attorney General argues that Shirley does not apply because the events to which the victim testified were wholly unrelated to the events which were the subject of the hypnotic session.   Alternatively, the People argue that the admissibility of the victim's testimony was determined in our previous opinion and therefore is the law of the case.

 The doctrine of law of the case will not be applied when a change in the law has intervened between the earlier and later decisions.   (Anton v. San Antonio Community Hospital (1982) 132 Cal.App.3d 638, 647, 649, 183 Cal.Rptr. 423.)   The Supreme Court's decision in Guerra, holding Shirley to be retroactive, plainly constitutes an intervening change in the law.   Accordingly, that portion of our previous opinion holding that Shirley is not retroactive is not binding as law of the case.

Apart from the issue of the retroactivity of Shirley, our previous opinion decided that the rationale of Shirley did not apply to the facts of the present case.   In People v. Parrison (1982) 137 Cal.App.3d 529, 187 Cal.Rptr. 123, the court had undertaken a similar analysis to determine whether use of posthypnotic testimony violated the defendant's rights under the Sixth and Fourteenth Amendments.   We cited Parrison in our previous opinion and it is clear from the context that our discussion was for the same purpose.   Our previous opinion decided that, apart from Shirley, there is no constitutional impediment to use of the posthypnotic testimony under the circumstances of this case.   There has been no intervening change in the law on this issue and therefore our previous conclusion is law of the case as to any issue under the Sixth and Fourteenth Amendments.

Our previous opinion expressly refused to decide “the People's contention that Shirley is inapposite.”   The People make the same contention on this appeal, which we now proceed to consider.

Shirley lists four “limitations on the rule.”   The Attorney General relies on the first limitation but the third is also pertinent.   The limitations are described as follows:

“First, a previously hypnotized witness is not incompetent in the strict sense of being unable to express himself comprehensibly or understand his duty to tell the truth (Evid.Code, § 701), or of lacking the general capacity both to perceive and remember [citation].  Accordingly, if the prosecution should wish to question such a witness on a topic wholly unrelated to the events that were the subject of the hypnotic session, his testimony as to that topic would not be rendered inadmissible by the present rule.

“․

“Third, like the court in [State v.] Mack [(Minn.1980) 292 N.W.2d 764] (fn. 28, ante) we do not undertake to foreclose the continued use of hypnosis by the police for purely investigative purposes.   We recognize that on occasions in the past a subject has apparently been helped by hypnosis to remember a verifiable fact—such as a license plate number—that the police previously did not know and were then able to use as a ‘lead’ for further investigation of the crime.   It is neither appropriate nor necessary for us to enter the debate as to the need for this investigative technique, or its reliability.   We reiterate, however, that for the reasons stated above any person who has been hypnotized for investigative purposes will not be allowed to testify as a witness to the events that were the subject of the hypnotic session.”   (People v. Shirley, supra, 31 Cal.3d at pp. 67–68, 181 Cal.Rptr. 243, 641 P.2d 775, original emphasis, fns. omitted.)

 The People argue that the subject of the hypnotic sessions with Pamela G. was “the precise desert route taken” and asserts that “the fact appellant and the victim left her home together in her car the night of the rape was not the subject of hypnosis.”

We are regretfully unable to agree.   The Shirley limitation does not turn on the purpose or the focus of the hypnotic sessions but rather on the events reviewed by the witness while under hypnosis.   In the present case those events included everything which Pamela could remember beginning with her first view of defendant at her trailer until her return from the desert to the trailer.   Testimony by Pamela G. as to what took place during that interval of time is not admissible under the “limitations” mentioned in Shirley.

This does not end the discussion, however, because Guerra has introduced at least the possibility of additional flexibility in the application of the Shirley rule.   At the end of the majority opinion, the question of whether a witness might be permitted to testify to facts remembered before hypnosis was again considered:

“In Shirley we noted that a proposal to admit what is perhaps the most common form of such evidence—trial testimony by the witness as to facts he claims to have remembered before hypnosis—has been judicially criticized ‘for a number of scientific and practical reasons that we find persuasive.’   (Italics added.)  (31 Cal.3d at p. 48, fn. 29 [181 Cal.Rptr. 243, 641 P.2d 775], citing State ex rel. Collins v. Superior Court, etc. (Ariz.1982) supra, [132 Ariz. 180] 644 P.2d 1266, 1297–1299 (dis. opn. of Gordon, Vice C.J.).)   We have reviewed the opinions relied on by respondent, but nothing therein convinces us to recant that finding.   Indeed, one of those opinions itself criticizes the proposed exception for prehypnotic evidence as ‘difficult to reconcile’ with the rule barring the testimony of a witness who has been subjected to pretrial hypnosis.  (State v. Brown (N.D.1983) supra, 337 N.W.2d 138, 149.)

“The soundness of an exception for prehypnotic evidence has already been questioned in the scientific community.   The proposed exception has also been vigorously attacked in the scholarly literature.  [Citations.]  In addition to the obvious hearsay problems presented by most types of prehypnotic evidence (see fn. 45, ante), the proposal raises constitutional issues of impairment of the right to confrontation and potential denial of a fair trail that may be different in degree but are not different in kind from those presented by the use of pretrial hypnosis in general.  [Citation.]

“We decline to render an advisory opinion answering those difficult questions in the case at bar.   Respondent simply recites the holdings of the out-of-state cases without further analysis, and defendants have not briefed the matter at all.   It will be time enough to grapple with such questions in a case in which they are presented as dispositive issues on a satisfactory record and after full briefing.”  (People v. Guerra, supra, 37 Cal.3d at pp. 428–429, 208 Cal.Rptr. 162, 690 P.2d 635.)

Despite the discouraging tone of this discussion, the net result was to leave open the question of the admissibility of posthypnotic testimony regarding facts remembered before hypnosis.   The concurring opinion of Justice Kaus, in which Justice Grodin joined, clearly indicates a willingness to admit such testimony in an appropriate case, particularly where the hypnosis occurred before Shirley was announced.   The dissenting opinion of Justice Lucas likewise favors admissibility of prehypnotic memory evidence.

 The present case is an appropriate one in which to establish and apply an exception for prehypnotic memory testimony.   Factors favoring this conclusion are:  (1) the prehypnotic memory of Pamela G. was preserved by a tape-recorded interview, which was played to the jury, (2) she did not give conflicting accounts before hypnosis, (3) the hypnosis occurred before the Shirley rule was announced, (4) the additional details (landmarks and directions) recalled during hypnosis were insignificant and were not mentioned during the trial testimony, (5) the events covered during the hypnotic session included only part of the entire criminal episode, and (6) the testimony of Pamela G. regarding the automobile ride which was the subject of hypnosis was corroborated by the testimony of the officer who recalled seeing her leaving the trailer park in the vehicle with defendant.

Interestingly, in this case, unlike Shirley and Guerra, defendant did not attempt to impeach the witness with evidence of her hypnosis and, in fact, the jury was never informed of the hypnotic sessions.   This could be viewed as a tacit concession that the dangers which Shirley identified in the use of hypnotically induced testimony were not present to any significant degree in this case and therefore the fact of hypnosis had no value for impeachment.

The principal dangers mentioned in Shirley and Guerra are:  (1) the production of pseudomemories, (2) the aura of certainty, and (3) the enhancement of emotion.   Here there is no possibility of pseudomemories induced by hypnosis because the prehypnotic memory was recorded and contains all the essential facts to which the witness later testified.   As to the second danger, any aura of certainty would exist only in regard to the events which were the subject of the hypnotic session—i.e., the trip into the desert.   The victim's testimony regarding the earlier events at the bar and the later events inside the trailer could not have been affected by any artificial aura of certainty and therefore the jury's ability to evaluate her credibility could not have been significantly impaired.   Regarding the possibility of enhanced emotion, defendant cites a passage in the reporter's transcript where Pamela's testimony was interrupted because she began to weep.   However, at that point she was describing the sexual assault inside the trailer, which was never the subject of hypnosis.   Accordingly, the emotion displayed could not have been an artifact of the hypnotic experience.

We conclude that the trial court did not err in denying the motion to exclude the testimony of Pamela G. regarding the events which were the subject of her hypnotic sessions.

II

 In addition to the Shirley motion, defendant's trial counsel brought a motion in limine to discover whether any prosecution witness (a) had a prior felony conviction, (b) had any criminal charges pending against him or her anywhere in the state, or (c) was on probation or parole.   The following exchange ensued:

“Mr. Fagan [the prosecutor]:  As to pending charges, I have no knowledge of that.   That's not information that's generally contained in the CII automated computer.   I don't know of any way to acquire that from the 57 counties in the state.   Likewise, I can tell you I am not sure about the probation status or whatever.   I can tell the Court all the witnesses but one.   There are no records at all.   The one record for a year is a misdemeanor and out of Los Angeles County, by the way, subsequent to this offense.   I don't know what relevance that has and, of course, the Rap Sheets themselves are control documents pursuant to the Government Code.

“Mr. DePrisco [defense counsel]:  We would ask that he provide us with a copy of that.

“The Court:  All right, I would order the District Attorney to provide the Public Defender with a copy of the—what you call it?   What official name?

“Mr. Fagan:  CII printout.

“The Court:  —CII printout for the witness [Pamela G.].  It will be an order of the Court.

“Mr. DePrisco:  As to my request, your Honor, concerning pending charges and probationary status of each witness?

“The Court:  Will be denied.   Okay?

“Mr. Fagan:  Fine.   I presume this is a non-impeachable offense?

“The Court:  What's that?

“Mr. Fagan:  That's contained in the record the Court has ordered me to give to Mr. DePrisco since it is a misdemeanor.

“The Court:  Yes.   Of course it is non-impeachable.”

The Attorney General concedes the prosecutor was wrong in stating that information regarding pending charges was not available to him.   The CII printouts, commonly known as rap sheets, do contain that information.   The People likewise concede it was error for the trial court to deny the motion as to witnesses other than Pamela G.   The People maintain the error was necessarily harmless because there was nothing to disclose.   In reaching this conclusion, the People interpret the prosecutor's statement that “there are no records at all” to mean that the CII printouts for all witnesses other than Pamela G. were blank and so there could not have been any prior felony convictions, pending charges, or probation or parole status to disclose.   It is clear from the record, the People argue, that Pamela G. was the only prosecution witness with any criminal record whatever.

We are unable to adopt this reasoning.   For one thing, the prosecutor's remarks are ambiguous.   The statement “I can tell the Court all the witnesses but one” could mean the prosecutor never investigated the criminal record of one of the witnesses.   Also the statement on which the Attorney General relies (“There are no records at all”) could have meant no records of convictions.   This would still leave open the possibility of pending criminal charges against other witnesses.

Defendant was clearly entitled to discovery of the material requested.   (People v. Coyer (1983) 142 Cal.App.3d 839, 842–843, 191 Cal.Rptr. 376;  People v. Espinoza (1977) 73 Cal.App.3d 287, 291, 140 Cal.Rptr. 846.)   Because there is a possibility that defendant was denied access to discoverable material, we will adopt the disposition employed in Coyer.   The matter will be remanded to the trial court with directions to grant the discovery motion.   Upon examination of the discovery materials the defendant may elect to bring a motion for a new trial.   If not, the trial court will be directed to reinstate the judgment.   If a motion is brought, the court will evaluate the merits of the motion and proceed accordingly.

III

After announcing his decision to commit defendant to the Youth Authority, the trial judge stated the sentence he would have imposed had he sentenced defendant to state prison.¹  The midterm would have been imposed on each count and each count would have been enhanced one year for the finding of use of a deadly weapon.   Sentence on the three counts would have been ordered to run concurrently.

On this appeal, defendant contends the proposed sentence was in violation of the multiple punishment provisions of Penal Code section 654.²

The Attorney General argues that the issue is moot:  “Appellant was sentenced to California Youth Authority, not state prison.   Thus, although the trial court stated it would have imposed concurrent sentences had appellant been sent to state prison, the sentences were in fact not imposed.”

 Once again the Attorney General has failed to persuade us.   A court committing a defendant to the Youth Authority following a criminal conviction is required to state on the record what sentence would otherwise have been imposed.  (Cal.Rules of Court, rule 453(a).)   Any error in the statement is reviewable on appeal and may, in a particular case, require reversal of the judgment for resentencing.  (People v. Austin (1981) 30 Cal.3d 155, 159–161, 178 Cal.Rptr. 312, 636 P.2d 1.)

Preliminarily, we note that the trial judge elected not to sentence under Penal Code section 667.6.   Accordingly, we need not consider the relationship between sections 654 and 667.6, an issue now pending before our Supreme Court in several cases.

A defendant who kidnaps for the purpose of rape can be convicted of both the kidnaping and the resulting rape but under Penal Code section 654 may only be punished for one of the two offenses.  (People v. Burns (1984) 158 Cal.App.3d 1178, 1181, 205 Cal.Rptr. 356.)   Likewise, a defendant who commits burglary with the intent to rape may be convicted of burglary and rape but Penal Code section 654 prohibits punishment for both offenses.  (In re McGrew (1967) 66 Cal.2d 685, 688, 58 Cal.Rptr. 561, 427 P.2d 161.)

 In the present case, there was no evidence of any intent or objective in the commission of the kidnaping and burglary other than the rape of the victim.   The trial judge stated as much in explanation of the decision to sentence concurrently rather than consecutively:  “․ the Court feels that the nature of the offense was such and that the acts were one continuous course of conduct.”

It has long been established that the imposition of concurrent sentences is precluded by section 654.  (People v. Miller (1977) 18 Cal.3d 873, 887, 135 Cal.Rptr. 654, 558 P.2d 552;  People v. Lee (1980) 110 Cal.App.3d 774, 785, 168 Cal.Rptr. 231.)   The correct procedure is to stay the pronouncement or, more commonly, the execution of sentence on as many counts as necessary to eliminate the proscribed multiple punishment.  (See, People v. Mariano (1983) 144 Cal.App.3d 814, 819, 193 Cal.Rptr. 47;  Cal.Rules of Court, rule 449.)   On remand the court will be directed to modify the statement of intended sentence to indicate stays on two of the three counts.

The judgment (order of commitment) is reversed with directions to order the prosecutor to furnish defense counsel with:  (1) any criminal charges pending against any prosecution witness at the time of trial, (2) any prior felony conviction of any prosecution witness, and (3) the probation and parole status of prosecution witnesses.   After receiving this material, defendant will be given a reasonable time, to be specified by the trial court, in which to bring a motion for new trial.   If no timely motion is brought, the court is directed to reinstate the judgment and to modify the statement of intended sentence to include appropriate stays under Penal Code section 654.   If a timely motion for new trial is brought, the court shall hear and determine the motion in accordance with this opinion and thereafter proceed as appropriate.

FOOTNOTES

1.   Had the offenses been committed after the effective date of Proposition 8, defendant would not have been eligible for Youth Authority commitment.  (See Welf. & Inst.Code, § 1732.5;  People v. Smith (1983) 34 Cal.3d 251, 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

2.   The trial judge acknowledged the possibility of a section 654 problem and cited it as one of the reasons for imposing concurrent rather than consecutive sentences.

RICKLES, Associate Justice.

KAUFMAN, Acting P.J., and McDANIEL, J., concur.